PRECEDENTIAL 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

_____________ 

No. 15-1602 

_____________ 

UNITED STATES OF AMERICA 

v. 

RAYMOND ANTHONY NAPOLITAN, 

 Appellant 

_____________ 

On Appeal from the United States District Court 

for the Western District of Pennsylvania 

(D.C. No. 2-11-cr-00146-001) 

District Judge: Honorable Mark R. Hornak 

_____________ 

Submitted: February 11, 2016 

Before: FUENTES, KRAUSE, and ROTH, Circuit Judges 

(Opinion filed: July 19, 2016) 

_____________ 

AKIN ADEPOJU, ESQUIRE 

RENEE PIETROPAOLO, ESQUIRE 
2 

Office of Federal Public Defender 

1001 Liberty Avenue 

1500 Liberty Center 

Pittsburgh, PA 15222 

Counsel for Appellant

DONOVAN J. COCAS, ESQUIRE 

REBECCA R. HAYWOOD, ESQUIRE 

Office of United States Attorney 

700 Grant Street 

Suite 4000 

Pittsburgh, PA 15219 

Counsel for Appellee

_____________ 

OPINION OF THE COURT 

_____________ 

KRAUSE, Circuit Judge. 

 Raymond Anthony Napolitan appeals his federal 

criminal sentence for possession with intent to distribute five 

hundred grams or more of cocaine on the ground that it was 

substantively unreasonable for the District Court to run his 

federal sentence consecutively to a separate state sentence 

that Napolitan now claims is itself unconstitutional under 

Alleyne v. United States, 133 S. Ct. 2151 (2013). Today we 

join our sister Circuits in holding that a defendant may not 

challenge the reasonableness of his federal sentence on appeal 

via a collateral attack on a prior state sentence. Accordingly, 

we will affirm the sentence imposed by the District Court. 
3 

I. Background 

 Napolitan was arrested in 2007 after police discovered 

nearly a kilogram of cocaine in his home in Farrell, 

Pennsylvania, along with drug trafficking paraphernalia and a 

series of firearms. In 2008, based on facts that came to light 

as part of the drug bust, Napolitan was convicted of sexual 

assault and simple assault in a bench trial in the Mercer 

County Court of Common Pleas. Napolitan was then 

sentenced in state court to five to ten years1

 pursuant to a 

then-operational Pennsylvania state law, 42 Pa. Cons. Stat. 

§ 9712, that increased the mandatory minimum sentence for a 

“crime of violence” when the sentencing judge determined by 

a preponderance of the evidence that the perpetrator 

possessed a firearm that was used to frighten the victim 

during the commission of the offense. The Pennsylvania 

Superior Court has since ruled en banc that this sentencing 

regime is unconstitutional in light of Alleyne, which held that 

whenever the existence of a particular fact serves to increase 

a statutory minimum sentence as a matter of law, that fact 

amounts to an “element” of the underlying crime that must be 

proven to the factfinder beyond a reasonable doubt, Alleyne, 

133 S. Ct. at 2158. Commonwealth v. Watley, 81 A.3d 108, 

 1

 The Government avers that Napolitan was instead 

sentenced to 66-132 months in state court. For purposes of 

this appeal, we accept that Napolitan was sentenced under 

state law “to a term of not less than 5 years nor more than 10 

years on the crime of Sexual Assault,” as reflected in the trial 

court judge’s January 9, 2009 opinion, which was “written 

pursuant to Pennsylvania Rule of Appellate Procedure 1925 

following [Napolitan’s] timely appeal from the denial of his 

[motion for post-sentence relief].” App. 389, 391. 
4 

116-117 & n.4 (Pa. Super Ct. 2013) (en banc); see also

Commonwealth v. Valentine, 101 A.3d 801, 811 (Pa. Super 

Ct. 2014), appeal denied 124 A.3d 209 (Pa. 2015); 

Commonwealth v. Newman, 99 A.3d 86, 101 n.9 (Pa. Super 

Ct. 2014) (en banc), appeal denied, 121 A.3d 496 (Pa. 2015). 

 In 2011, a grand jury in the Western District of 

Pennsylvania indicted Napolitan on two counts related to the 

2007 drug bust: possession with intent to distribute five 

hundred grams or more of cocaine, in violation of 21 U.S.C. 

§§ 841(a)(1) and (b)(1)(B)(ii), and possession of a firearm in 

furtherance of a drug trafficking crime, in violation of 18 

U.S.C. § 924(c)(1)(A)(i). A jury convicted Napolitan of the 

drug possession charge,2

 and he was initially sentenced to 78 

months’ imprisonment, to run consecutively to his existing 

state sentence. After Napolitan appealed his conviction to our 

Court, requesting a new trial on the ground of alleged false 

witness testimony, and the Government cross-appealed, 

claiming the District Court should have applied certain 

sentencing enhancements, we affirmed the conviction but 

remanded for resentencing in consideration of the sentencing 

enhancements at issue. United States v. Napolitan, 762 F.3d 

297, 301, 307 (3d Cir. 2014). 

 At resentencing, the District Court applied one of the 

sentencing enhancements and entered a 90-month sentence 

for the federal drug conviction. After considering the 

arguments Napolitan now raises on appeal, the District Court 

 2

 The firearm count was not submitted to the jury 

because the District Court granted Napolitan’s motion for 

judgment of acquittal pursuant to Federal Rule of Criminal 

Procedure 29.
5 

stated on the record that it was appropriate to run the federal 

sentence consecutively to Napolitan’s state sentence because, 

even though the offenses underlying both sentences arose in 

the same general time frame, the state and federal crimes 

were distinct.3

 

Napolitan now appeals, arguing that the District 

Court’s decision to run his two sentences consecutively was 

substantively unreasonable. He urges—as he did at his 

resentencing—that because his state sentence was calculated 

under a statute that required an increase in the mandatory 

minimum sentence based on a judge’s determination, by a 

preponderance of the evidence, that Napolitan used a firearm 

to intimidate his victim, his state sentence violated Alleyne.

4

 

 3 To the extent Napolitan suggests that the District 

Court imposed the federal sentence consecutively in an effort 

to “fully punish[]” Napolitan for the state and federal 

convictions, Appellant’s Br. 24, he mischaracterizes the 

record. The District Court simply applied U.S.S.G. § 5G1.3 

in making its determination that the sentences for the two 

temporally proximate but distinct offenses should run 

consecutively; it did not state or imply that it was seeking to 

“fully punish” Napolitan for both offenses in some general 

sense outside of the discretion afforded to it by the 

Guidelines. Indeed, the District Court explicitly rejected 

Napolitan’s argument that, because both the state and federal 

crimes arose in a similar time period, they were related and 

thus more likely to warrant concurrent sentences under 

§ 5G1.3, and Napolitan does not appear to challenge that 

conclusion on appeal. 

4

 Napolitan’s argument rests on an assumption that, in 

the context of a challenge to his federal sentence on direct 
6 

According to Napolitan, under a constitutional state 

sentencing regime, his state sentence would have elapsed by 

the time the federal sentence was handed down; thus, 

Napolitan argues, he had been fully punished for his state 

conviction at the time of his federal sentencing and a 

concurrent federal sentence was therefore warranted. For the 

reasons set forth below, we conclude the District Court did 

not abuse its discretion in ordering Napolitan’s federal 

sentence to be served consecutively to his state sentence. 

II. Jurisdiction and Standard of Review 

 We have jurisdiction to review the propriety of a 

federal sentence pursuant to 28 U.S.C. § 1291 and 18 U.S.C. 

§ 3742(a). We review the substantive reasonableness of a 

District Court’s sentence—including its choice to run the 

sentence consecutively to a state court sentence—for abuse of 

discretion, overturning such a sentence “only where ‘no 

reasonable sentencing court would have imposed the same 

sentence on that particular defendant for the reasons the 

district court provided.’” United States v. Freeman, 763 F.3d 

322, 335 (3d Cir. 2014), cert. denied sub nom. Mark v. United 

States, 135 S. Ct. 1189 (2015) and cert. denied, 135 S. Ct. 

1467 (2015) (quoting United States v. Tomko, 562 F.3d 558, 

568 (3d Cir. 2009) (en banc)); United States v. Gillette, 738 

F.3d 63, 79 (3d Cir. 2013) (considering a challenge to the 

 

appeal, Alleyne would apply retroactively to his state 

sentence. But see United States v. Reyes, 755 F.3d 210, 212-

13 (3d Cir. 2014) (concluding Alleyne does not apply 

retroactively to cases on collateral review); United States v. 

Winkelman, 746 F.3d 134, 136 (3d Cir. 2014) (same). 

Because we resolve this case on other grounds, we need not 

address this issue. 
7 

substantive reasonableness of the consecutive nature of two 

sentences). 

III. Discussion 

Napolitan acknowledges that the District Court “ha[s] 

no authority to cure his illegal state sentence,” Appellant’s Br. 

31, and thus that he may not on direct appeal contest the 

validity of his state sentence. What he is arguing on appeal, 

he contends, is something entirely different: that a federal 

sentencing court necessarily abuses its discretion and imposes 

a substantively unreasonable sentence if it runs a federal 

sentence consecutively to an invalid state sentence. We find 

the distinction Napolitan draws to be one without a difference 

because his proposed rule is, in fact, premised on exactly the 

type of collateral attack on his state sentence he insists he 

does not seek—a claim properly raised in a habeas petition, 

pursuant to 28 U.S.C. § 2254. 

 In any event, the arguments for such a rule already 

have been rejected by the Supreme Court. In Custis v. United 

States, the Supreme Court held that, with the exception of two 

circumstances, “a defendant in a federal sentencing 

proceeding may [not] collaterally attack the validity of 

previous state convictions that are used to enhance his 

sentence.” 511 U.S. 485, 487 (1994). There, a defendant 

sought to challenge the validity of past convictions that 

played a role in his federal sentencing on the grounds that the 

past convictions were obtained with unconstitutionally 

ineffective assistance of counsel and in violation of his right 

under Boykin v. Alabama, 395 U.S. 238 (1969), to knowingly 

and voluntarily enter a guilty plea. Custis, 511 U.S. at 488. 

The Supreme Court disagreed and held that a defendant may 

challenge the propriety of a previous state conviction that 
8 

affects his current federal sentencing only where (1) he 

alleges the “unique constitutional defect” that he was denied 

the right to counsel under Gideon v. Wainwright, 372 U.S. 

335 (1963), in the proceedings leading to such prior 

conviction, or (2) the statute under which he is currently 

being sentenced explicitly provides for the ability to 

collaterally attack “prior convictions used for sentence 

enhancement purposes.” Custis, 511 U.S. at 490-97; accord

United States v. Escobales, 218 F.3d 259, 261-263 (3d Cir. 

2000) (recognizing no Custis exception (1) for an alleged 

violation of a defendant’s right to a jury trial or (2) in the 

language of the criminal history provisions of the U.S. 

Sentencing Guidelines); United States v. Thomas, 42 F.3d 

823, 824-25 (3d Cir. 1994) (applying Custis to bar a 

defendant’s challenge to his federal sentence based on a 

constitutional defect in a prior state conviction because he 

alleged no Gideon violation and the applicable U.S. 

Sentencing Guideline lacked statutory authorization for such 

a challenge). 

 In reaching its conclusion in Custis, the Supreme Court 

sought to avoid condoning instances where, “[b]y challenging 

[a] previous conviction, the defendant [asks] a district 

court”—or here, an appellate court—“‘to deprive the statecourt judgment of its normal force and effect in a proceeding 

that has an independent purpose other than to overturn the 

prior judgment.’” 511 U.S. at 497 (quoting Parke v. Raley, 

506 U.S. 20, 30 (1992)). Instead, the Court prescribed that 

where a defendant believes his prior state convictions were 

unlawful, the proper method of challenging such convictions 

is either through direct appeal in the state court or through 
9 

federal habeas review.5

 Id.; Escobales, 218 F.3d at 261; see 

also Daniels v. United States, 532 U.S. 374, 381 (2001) (“Our 

system affords a defendant convicted in state court numerous 

opportunities to challenge the constitutionality of his 

conviction. He may raise constitutional claims on direct 

appeal, in postconviction proceedings available under state 

law, and in a petition for a writ of habeas corpus brought 

pursuant to 28 U.S.C. § 2254 . . . .”).6

 Only if a defendant “is 

 5

 In July 2015, almost five months after the District 

Court entered Napolitan’s federal sentence and nearly seven 

years after the state court sentenced Napolitan for his state 

conviction, Napolitan filed such a habeas petition alleging, 

among other things, ineffective assistance of counsel in his 

state proceedings and a due process violation for being 

sentenced under a state statute later deemed unconstitutional. 

Whatever the resolution of that petition, however, its 

pendency does not bear on the validity of Napolitan’s claim 

in this appeal that his federal sentence was substantively 

unreasonable at the time it was imposed. 

6

 A plurality of the Supreme Court has recognized that 

exceptions to the Custis rule may also exist in the 28 U.S.C. 

§ 2254 or § 2255 context where “no channel of review was 

actually available to a defendant with respect to a prior 

conviction, due to no fault of his own,” Daniels, 532 U.S. at 

383-84 (plurality opinion), such as in the case of newly 

discovered evidence that comes to light after the “time for 

direct or collateral review has expired” or a state court’s 

refusal without justification “to rule on a constitutional claim 

that has been properly presented to it,” Lackawanna Cty. Dist. 

Att’y v. Coss, 532 U.S. 394, 405 (2001) (plurality opinion). 

Neither circumstance is presented here, as Napolitan contends 
10 

successful in attacking these state sentences” through one of 

the proper avenues, may he “then apply for reopening of any 

federal sentence enhanced by the state sentences.” Custis, 

511 U.S. at 497. The Court grounded its opinion in Custis in 

the goals of “promoting finality of judgments,” ensuring 

confidence in the integrity of the courts, advancing “the 

orderly administration of justice,” and avoiding asking 

sentencing courts “to rummage through frequently 

nonexistent or difficult to obtain state-court transcripts or 

records that may date from another era.” Id. at 496-97. 

 Drawing on both the logic and language of Custis, we 

see no reason why state sentences should not be accorded the 

same respect and be subject to the same forms of substantive 

review afforded to state convictions. To hold otherwise 

would be to contravene Custis by allowing a defendant “to 

deprive [a] state-court judgment of its normal force and 

effect” by way of a direct appeal of his federal sentence—“a 

proceeding that has an independent purpose other than to 

overturn the prior judgment.” Id. at 497 (quoting Parke, 506 

U.S. at 30). We therefore hold that an appellant may not 

collaterally attack a state court sentence as part of a federal 

 

that his state post-conviction collateral review counsel was 

ineffective for failing to raise his claim based on Alleyne, 

which was decided while his post-conviction collateral review 

petition was pending. Thus, while Napolitan argues that “he 

has no remedy” to cure his allegedly unconstitutional state 

sentence, Appellant’s Br. 18, he does not now challenge his 

state sentence based on newly discovered evidence nor allege 

that the state courts have unjustifiably refused to rule on his 

Alleyne claim. 
11 

sentencing challenge unless (1) he claims a Gideon violation, 

or (2) the relevant federal statute or sentencing guideline 

expressly authorizes a collateral attack.7

 

 Neither pertains here. Napolitan’s reliance on Alleyne

does not trigger the “unique constitutional defect” of a 

Gideon violation. Id. at 496. Nor does Napolitan identify 

any express authorization to support his collateral attack—

either in a statute or in the sentencing guidelines. On the 

contrary, in ordering Napolitan’s federal sentence to run 

consecutively to his state sentence, the District Court relied 

upon U.S.S.G. § 5G1.3, which confers on a defendant no 

express permission to challenge the legality of a prior 

sentence, and by its terms affords sentencing courts broad 

discretion to run multiple sentences for unrelated crimes 

consecutively, concurrently, or partially concurrently. 

Moreover, the Supreme Court has recognized that, as a 

general matter, district courts may exercise their sound 

discretion in choosing whether to run a federal sentence 

consecutively to an existing state sentence. See Setser v. 

United States, 132 S. Ct. 1463, 1468 (2012) (citing Oregon v. 

 7

 While Custis only referenced the federal statute

under which a defendant is sentenced as a potential source of 

authorization to collaterally attack a past conviction, we have 

interpreted Custis to provide a route to launch such a 

collateral attack if the federal sentencing guideline pertinent 

to a defendant’s federal sentence confers such authorization, 

as well. E.g., Escobales, 218 F.3d at 260; Thomas, 42 F.3d at 

824. In extending Custis’s reach to prior state sentences, we 

adhere to our prior interpretation that sentencing guidelines 

could—in theory—offer an exception to the Custis rule. 
12 

Ice, 555 U.S. 160, 168-69 (2009)) (“Judges have long been 

understood to have discretion to select whether the sentences 

they impose will run concurrently or consecutively with 

respect to other sentences . . . that have been imposed in other 

proceedings, including state proceedings.”). 

 Our extension today of the Custis rule to state 

sentences leaves no room for Napolitan to appeal the 

consecutive running of his federal sentence. For while 

couched as a challenge to the substantive reasonableness of 

his federal sentence, Napolitan’s claim boils down to the 

argument that a sentencing court abuses its considerable 

discretion to run sentences consecutively unless it 

independently confirms the validity of an existing state 

sentence—an approach that would require federal sentencing 

courts to undertake collateral review of any allegedly illegal 

state sentence and, upon a finding of constitutional defect, to 

determine the permissible length of the state sentence and to 

run a commensurate portion of the federal sentence 

concurrently to the unexpired state sentence to offset any 

unconstitutional time. Such a rule would not only amount to 

a considerable constriction of district courts’ discretion as to 

whether to run sentences concurrently or consecutively, but 

also would be a cumbersome imposition on federal 

sentencing and a clear repudiation of the finality typically 

afforded to state court judgments—the very reasons the 

Supreme Court rejected such a rule as applied to state 

convictions in Custis, 511 U.S. at 496-97. 

 No doubt for these reasons, every Court of Appeals to 

have addressed the question has extended the precepts of 

Custis to bar collateral attacks in federal sentencing appeals 

against not only prior state convictions, but also prior state 

sentences. In United States v. Saya, for example, the 
13 

defendant argued that he was improperly sentenced as a 

“career offender” under U.S.S.G. § 4B1.1 based on two prior 

Hawaii state law convictions. 247 F.3d 929, 939-40 (9th Cir. 

2001). Citing to Custis, the Ninth Circuit rejected the 

defendant’s attempt to “in effect . . . mount a collateral attack 

on his prior state sentence,” determining instead that there is 

“no reason why the Custis rule should not apply to collateral 

attacks on prior state sentences.” Id. at 940 (emphasis in 

original); see also United States v. Galvan, 453 F.3d 738, 741 

(6th Cir. 2006) (concluding that “the district court at 

sentencing need not collaterally review [a defendant’s] prior 

sentences”);8 United States v. Warren, 335 F.3d 76, 77-79 (2d 

Cir. 2003) (holding a defendant may not collaterally attack 

the validity of a past federal “conviction or sentence” based 

on Apprendi v. New Jersey, 520 U.S. 466 (2000), in 

connection with a supervised release revocation proceeding). 

We join these Courts of Appeals today. 

IV. Conclusion 

 For the reasons stated above, we will affirm the 

sentence imposed by the District Court. 

 8

 While the Galvan court did not cite to Custis, it cited 

to the decision of another Court of Appeals that did and 

adopted the two exceptions to the Custis rule, thereby 

tracking Custis in substance. Galvan, 453 F.3d at 741-42 

(citing United States v. Mateo, 271 F.3d 11, 16 (1st Cir. 

2001)).